EU regulatory case law, September 2014: telecoms operators’ tax on establishments and the Flemish green energy certificate

In this issue of Aphaia’s monthly recap of relevant ECJ judgements read if electronic communications operators should pay a general tax on establishments, and if Member States may provide incentives for electricity suppliers to support the production of green electricity by domestic producers.

 

Telecommunications

Joined cases C 256/13 and C 264/13 Belgacom and Mobistar on conditions attached to the general authorisation and to the rights of use for radio frequencies and for numbers

In joined cases C 256/13 and C 264/13 Belgacom and Mobistar requests for a preliminary ruling concerned the interpretation of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21).

The requests have been made in two sets of proceedings between the Provincie Antwerpen (the province of Antwerp) and Belgacom NV van publiek recht (‘Belgacom’) and between the Provincie Antwerpen and Mobistar NV (‘Mobistar’), concerning decisions making those two companies liable to pay a general provincial tax in respect of their establishments located in the territory of Antwerp Province. The Court held that articles 6 and 13 of the Authorisation Directive must be interpreted as not precluding operators providing electronic communications networks or services from being subject to a general tax on establishments, on account of the presence on public or private property of cellular telephone communication masts, pylons or antennae which are necessary for their activity.

Energy

Case C 152/13 Holger Forstmann Transporte on taxation of energy products and electricity

In case C 152/13 Holger Forstmann Transporte the request for a preliminary ruling concerned the interpretation of Article 24(2) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51).

The request has been made in proceedings between Holger Forstmann Transporte GmbH & Co. KG (‘Forstmann Transporte’) and Hauptzollamt Münster (Principal Customs Office, Münster; ‘the Hauptzollamt’) concerning the payment of energy tax on diesel purchased in the Netherlands and contained in the tanks of a lorry belonging to that company for use by that vehicle in Germany as fuel. The Court held that the term ‘standard tanks’, referred to in the first indent of Article 24(2) of Council Directive 2003/96/EC, must be interpreted as not excluding tanks fixed permanently to commercial motor vehicles intended for the direct supply of fuel to those vehicles when the tanks have been fitted by a person other than the manufacturer, in so far as the tanks enable fuel to be used directly, both for the purpose of propulsion of the vehicles and, where appropriate, for the operation, during transport, of refrigeration systems and other systems.

Environment

Joined cases C 204/12 to C 208/12 Essent Belgium: Flemish green energy certificate scheme

In joined cases C 204/12 to C 208/12 Essent Belgium the Court held that Flemish green energy certificate scheme is compatible with EU law. Member States may provide incentives for electricity suppliers to support the production of green electricity by domestic producers.

Requests for a preliminary ruling have been made in proceedings between Essent Belgium NV (‘Essent’) and the Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (Flemish Regulatory Authority for the Electricity and Gas Market) (‘the VREG’), the Vlaams Gewest (Flemish Region) and the Vlaamse Gemeenschap (Flemish Community), concerning administrative fines imposed on Essent by the VREG for failure to surrender green certificates establishing that the quantity of electricity listed therein was produced from renewable energy sources (‘green certificates’).

The Court held that Article 5 of Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market must be interpreted as not precluding a national support scheme which provides for the issuance, by the competent regional regulatory authority, of tradable certificates in respect of green electricity produced on the territory of the region concerned and which places electricity suppliers under an obligation, subject to an administrative fine, to surrender annually to that authority a certain number of those certificates corresponding to a proportion of the total volume of the electricity that they have supplied in that region, without those suppliers being allowed to fulfil that obligation by using guarantees of origin originating from other Member States of the European Union or non-member States which are parties to the EEA Agreement.

Articles 28 EC and 30 EC and Articles 11 and 13 of the Agreement on the European Economic Area of 2 May 1992, must be interpreted as not precluding a national support scheme, provided that:

  • mechanisms are established which ensure the creation of a genuine market for certificates in which supply can match demand, reaching some kind of balance, so that it is actually possible for the relevant suppliers to obtain certificates under fair terms;
  • the method of calculation and amount of the administrative fine to be paid by suppliers who have not fulfilled that obligation are fixed in such a way as not to exceed what is necessary to encourage producers actually to increase their production of green electricity and suppliers subject to that obligation actually to purchase the required certificates, by avoiding in particular penalising those suppliers in an excessive manner.

The rules on non-discrimination contained in Article 18 TFEU, Article 4 of the Agreement on the European Economic Area of 2 May 1992 and Article 3(1) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC respectively, must be interpreted as not precluding a national support scheme as described in paragraph 1 of the present operative part.

Competition

Case C-67/13P Groupement des cartes bancaires (CB) v Commission on measures with anti-competitive ‘effects’

In case C-67/13P Groupement des cartes bancaires (CB) v Commission the Court held that the General Court in the judgment CB v Commission, T‑491/07, by which that court dismissed its action for the annulment of Commission Decision C (2007) 5060 final of 17 October 2007 relating to a proceeding under Article [81 EC] (COMP/D1/38606 — Groupement des cartes bancaires ‘CB’), could not properly conclude that the pricing measures adopted by the French Groupement des cartes bancaires had as ‘their object’ the restriction of competition. The Court of Justice annuled the judgment of the General Court and refered the case back to it so that it may examine whether the measures at issue could be prohibited on account of their anti-competitive ‘effects’.

Joined Cases C 184/13 to C 187/13, C 194/13, C 195/13 and C 208/13 API and others on amount of the minimum operating costs determined by a body representing the operators concerned

Joined Cases C‑184/13 to C‑187/13, C‑194/13, C‑195/13 and C‑208/13 API and others on amount of the minimum operating costs determined by a body representing the operators concerned. By providing that the price of haulage services may not be lower than minimum operating costs, Italian legislation infringes EU law.

The requests for a preliminary ruling have been made in proceedings concerning measures fixing minimum operating costs in the sector of carriage of goods by road for hire and reward. The cases in the main proceedings stem from a series of main and supplementary applications brought before the Tribunale amministrativo regionale per il Lazio for annulment of the acts by which the Osservatorio established the minimum costs under Article 83a of amended Decree‑Law No 112/2008. According to the referring court, the Italian legislation introduces a regulated system for the fixing of minimum operating costs, which constrains free bargaining and curtails the freedom to specify one of the essential elements of a contract, albeit for the purpose of ensuring compliance with safety standards. The need to maintain road safety is expressed in EU law, but the referring court is uncertain whether the balance between conflicting interests as struck by Article 83a of amended Decree‑Law No 112/2008 is consistent with EU law. The Court held that article 101 TFEU, read in conjunction with Article 4(3) TEU, must be interpreted as precluding national legislation, pursuant to which the price of haulage services for hire and reward may not be lower than minimum operating costs, which are fixed by a body composed mainly of representatives of the economic operators concerned.

Case C 242/13 Commerz Nederland on guarantees deliberately provided by the director of that public undertaking in disregard of that undertaking’s statutes and whether the guarantees may be imputed to the State

Case C‑242/13 Commerz Nederland on guarantees deliberately provided by the director of that public undertaking in disregard of that undertaking’s statutes and whether the guarantees may be imputed to the State

The request for a preliminary ruling concerns the interpretation of Article 107(1) TFEU and has been made in proceedings between Commerz Nederland NV (‘Commerz Nederland’) and Havenbedrijf Rotterdam NV (‘Havenbedrijf Rotterdam’), a port authority wholly owned by the municipality of Rotterdam, concerning, in particular, the validity of guarantees provided on behalf of Havenbedrijf Rotterdam and in disregard of that undertaking’s statutes by that undertaking’s sole director to Commerz Nederland, to enable the latter to make credit facilities available to third party borrowers.

The Court held that on a proper construction of Article 107(1) TFEU, for the purposes of determining whether or not the guarantees provided by a public undertaking are imputable to the public authority controlling that undertaking, the following are relevant, together with the body of evidence arising from the circumstances of the case in the main proceedings and from the context in which they took place: on the one hand, that the sole director of the company providing those guarantees acted improperly, deliberately kept the provision of those guarantees secret and disregarded the undertaking’s statutes and, on the other, that that public authority would have opposed the provision of the guarantees, had it been informed of it. In a situation such as that at issue in the main proceedings, those circumstances could, in themselves, exclude such imputability only if it may be inferred that the guarantees at issue were provided without the involvement of that same public authority.

Case C 527/12 European Commission v. Federal Republic of Germany on failure to act

In Case C‑527/12 European Commission v. Federal Republic of Germany the Court declared that, by failing to take all necessary measures to recover from the beneficiary the State aid which was the subject of Commission Decision 2011/471/EU of 14 December 2010 on State aid granted by Germany to the Biria group (C 38/05 (ex NN 52/04)), the Federal Republic of Germany has failed to fulfil its obligations under Article 108(2) TFEU, Article 14(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of [Article 108 TFEU], and Articles 1 to 3 of that decision.

Ines Grah

Ines Grah

Ines Grah, Aphaia’s guest blogger, holds a law degree in state aid and is currently writing a thesis on individuals’ access to the EU Court of Justice as part of the doctoral programme of the Faculty of Law at the University of Ljubljana.
Ines Grah

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